June 27, 2007

On Monday afternoon I posted the following to the House of Bishops/Deputies list:

Parishioners have the right to use church property for the work of the church. They have a custodial relationship over church property, but they do not own it. They have a form of usufruct, but have no power of alienation, as the canons made clear long before the Dennis Canon was a gleam in Walter Dennis’ eye.

Attempts to claim control of church property, conveying it to uses other than for the benefit of this Church, represent a form of alienation. It is not use but abuse, in the technical sense.

I received a couple of humorous notes about the use of the word usufruct — the right to make use of a property but not to dispose of it by sale or other conveyance. The technical meaning of the word abuse, by the way, is alienation, the opposite of use.

Then, late yesterday the California Court of Appeals issued a decision concerning a number of parishes that had sought to come under the governance of an overseas bishop and remain in control of their property. The decision rightly overturned the anomalous ruling that had held sway in California for about 30 years — a ruling out of step not only with most of the other states of the union but with the Supreme Court decision that led to the adoption of the Dennis Canon in the first place.

So I would like to make the further observation, in response to a press release from one of the dissident parishes arguing that the Court of Appeals decision is a departure from 30 years of precedents. Even a casual reading of the court’s decision shows that the earlier decision was a major departure — and an erroneous one — from many times more decades of precedents; moreover, precedents recognized throughout the US, based on a decision of the Supreme Court concerning implied and explicit trusts. The earlier California decision was an anomalous departure from the principal of stare decisis, as the Court of Appeals makes clear, and it led to an uneven and confusing application of law.

Moreover, much as folks like to demean the Dennis Canon, it is the law of the church; moreover, it was created in response to the request of the Supreme Court to render implied trusts (on the basis of which such cases had been decided up until then as sufficient) explicit. In short, there was no change in practice with the introduction of the Dennis Canon, merely a spelling out of what was already implied by both uniform practice and the already long-existing canons on alienation, to which I referred above. (Parishes cannot alienate, that is abuse, church property without the permission of the bishop and standing committee — clear evidence of the hierarchical nature of such decision-making processes concerning property.)

More than that, a moral issue is involved. Some have suggested that it is not fair that members of a dissenting parish should have to leave their property. This begs the question that it is “their” property. It isn’t, on several grounds. (I will not apply the various epithets of theft, poaching, &c., as I think the dissidents are honestly though mistakenly convinced of their proper ownership.)

Giving: When people give to the church, they give up control over what they have given. (A designated gift can, of course, allow for limited degree of control as to purpose.) However, most gifts are for the general operation of the church and its mission. Many people claim a tax deduction for such gifts; and if they were to attempt to recover them would incur a tax liability. It is an affront to the concept of stewardship to try to regain control over something you have given for the work of a larger entity. It would be very odd indeed if people could remove, say, a stained glass window, because they didn't like the new rector's preaching. We should not only not let our right hand know what our left hand is doing when we give open-handedly, but if we do know, forget it as soon as possible.

Custodianship: custodians have the care of property but they do not own it. They maintain it for the benefit of others. (Remember what Archbishop Temple said about the nature of the church: the only institution dedicated to serve those not yet its members.) The present members of a parish do not own the parish; it isn’t about “them.” They are not free to do with it as they please. Even in the days of pew rent, people only “rented” their pews.

Franchise: Parishes function as a part of and under the name of The Episcopal Church. While some may now see this to be a liability, for most of the life of these congregations it was an asset in that newcomers to the community could identify the parish as part of a larger entity, with its own identity. It is only through that larger entity that these parishes participate in the real-life Anglican Communion, as the Panel of Reference recently affirmed.

Tenancy: a church is the people, not the building; but not always the same people — as members pass into the ranks of the church expectant new members are added to the church militant. All of us, in the long run, are only temporary members of any congregation; tenants, not owners.

Usufruct: in a sense all congregations are like the Louisiana widow who has the right to continue to live in her intestate husband’s home, but doesn’t have the authority to sell it out from under the children, who inherit by right. (As I understand it, under Louisiana law a spouse is not an inheritor by right. That might seem odd, but it is similar to the situation in not-for-profit corporations which, when they dissolve, don’t divvy up the assets among the surviving members of the board, but turn the property over to another not-for-profit entity.) Moreover, the Louisiana widow loses usufruct over the property when she remarries, and the children come into their own inheritance. This seems a good analogy for the congregations who have hooked up with Uganda. There are still loyal Episcopalians who have the right to that property, and there will be more to come. The church is not only about the past but the future.

Stare decisis, returning to where we came in: In a hierarchical church such as The Episcopal Church, all real parish property is, and always has been, held in trust for the work of that church. Some have suggested that this case may be overturned if it comes to the Supreme Court of the United States. I would suggest that should it reach that Court, it will most likely rule in favor of TEC, since the Dennis Canon was enacted at it’s recommendation, to render explicit what was already implicit (and universal practice until that point, and was also covered in the canons on alienation, which go back to the 19th century).

Question, Fr. Tobias. On many reasserter blogs the position is taken that the Dennis Canon was never properly adopted by General Convention. Some self-appointed experts base their interpretation on a reading of White-Dykeman. Can you shed any light on that?

John Henry, all that White and Dykman say is that the canonical amendment isn't listed in the Journal under Concurrent Actions, and the index points to another matter. I don't have a copy of the 1979 Journal at hand to find out where the actions of the two Houses are recorded. The faults in the Journal may simply be editorial. The canon in question has been treated as in effect (by White and Dykman and in all editions of the Canons).This would be very shakey ground on which to challenge the Canon, IMHO.

The only way we can depart our common life is to leave. Not leave* (*and take the property with us); or leave* (*and take back the gifts we gave); or leave* (*and make sure you leave, too.)

We are, in that sense, ultimately responsible for our own behavior in relationship with community, but never permitted to take hostages, be they lands and property or our sisters and brothers in Christ.

only a few technical nits. it might seem that the opposite of implied trust is explicit trust, but actually they refer to totally different kinds of trust relationships. the point of the appeals court ruling is that there are *two* opposites to implied trust; one is the "form of government" test, the other is the "neutral principles of law". "neutral principles" was the bad decision that the panel has overturned this week. the bad decision seemed failed to see that arguments against "implied trust" were not ipso facto arguments in favor of "neutral principles" because it failed to properly separate "neutral principles" from "form of government".

the issue about "explicit trust" is that a california statute seemed to say that the "form of government" test would only apply if there were an explicit trust-setting canon. the panel this week wrote as if they have grave doubts about whether, constitutionally, that statute really can count: they seemed to think that it is not legitimate for the statute to require such things as the dennis canon: but that, since we do have the dennis canon, there is no occasion for them to actually reach that question.

second nit: the appeals court rightly did not continue the old language about "hierarchical" vs "congregational" forms of government. the "form of government" test had often been described in such terms, as if hierarchical churches had different rules from congregational ones. this would, as the panel noted, raise 1st amendment concerns, as well as fights about whether a church is or is not hierarchical. they said that in fact, while appellate courts have often talked in this language, it is not necessary. what the "form of government" test looks to is the church's own actual decision making process, whatever it is, whether hierarchical or not, and that the civil courts must defer to that process. the question of what the actual decision making process is would be, of course, a question of fact for a trial court to decide, but in practice, the court noted that in only one case has there ever been a disagreement about the matter, and even then it was not a genuine disagreement.

Thanks for the refinements, Thomas. Yes, it is interesting that the Court is also questioning the statute, even though in this case it is moot, since the Dennis Canon is the church law, and is now explicit.

(This is complicated as well because the decision in the earlier case was made in 1981 -- after the passage of the D.C. -- but the case was begun prior to its adoption. It makes it seem that the D.C. is not relevant. Ex post facto and all that...)

"There are still loyal Episcopalians who have the right to that property, and there will be more to come."

As an outsider I wonder then how can TEC sell so much of it's property? If parishes, diocese, etc. can't take their property to another Anglican province because TEC needs it for future generations, how can TEC sell the property and live up to the same standard?I have friends at a church contemplating leaving TEC, and one of the comments that comes up is that if the majority leave, the minority won't be able to maintain the building, which will be sold and will no longer be used for God's work at all. So why not fight for the property? If they win, it will remain a house of worship, if they lose, the fate of the building is the same as before-deconsecration.

Perhaps TEC should make some kind of agreement to give Anglican groups first choice. Isn't it better for a house of worship to remain one than for it to become a coffeeshop, apartment building or parking lot?

Chris H.,Don't believe everything you hear from the dissidents, that all churches they are forced to abandon will be sold, or simply perish. While a few of the high-profile dissident churches are "megachurches" many more are small to mid-sized churches; and there is good reason to think that there may be interest in a mainstream Episcopal Church taking their place and growing. The "minority" left behind in a church may well bounce back sufficiently to maintain their church buildings, once they are liberated from the "issue."

Obviously careful study will be needed. In the case where two churches are within blocks of each other, it might be considered more effective for mission to lease one building to another church (including a dissident "Anglican" group); but I don't buy the dissident line that TEC is withering on the vine, and that the only future for their churches is sale or dissolution.

If church-owned property is sold, an asset of the Episcopal Church remains. All that has changed is the form of the asset is changed from real property to cash. It can still be used for church purposes. However, if the land is alienated from the church, the value of the asset is lost.

My Contribution to the Listening Process

"a book that honors the Word of God, the faith once delivered, and moves it into our cultural context."—The Episcopal New Yorker

"seeks to meet opponents on their own ground, assessing their arguments carefully and refuting them courteously.... The value ... lies not in its conclusions alone but chiefly in the way Haller reaches them. Whoever is charged with compiling ... resources [on same-sex relationships] will want to add this book to the list."— The Anglican Theological Review